Could my EB-5 application be positively impacted if I pay the investment in full?

I have paid $100,000 for an EB-5 project and filed I-526 in 2016. I received NOID in January 2018 with a deadline of response in February. Four months after the deadline of submitting a response, which has been delivered by my lawyer, the project manager asked me to pay the balance of $400,000 for the project and claimed that it has a good effect on my application. I am wondering if the decision of USCIS would be based on this payment or if this might just help the project manager? What should I do?

To advise propriety, one would have to see the RFE. But we advise clients that the full amount must be invested at the time of filing and even though the regulations provide for person in "the processing of investing" as a practical matter, most of these cases are denied.

The rule is that you must have invested or be in the process of investing the full required amount of capital. Another requirement is that the I-526 petition must be approvable when filed and that the capital must be placed at risk. You should have an EB-5 attorney review the NOID and advise you how best to respond.

That is hard to tell. Technically, one must be in the process of investing or fully invested. Most whom I have worked with at least place the full amount in escrow before filing the I-526. If the NOID is challenging your commitment, then committing all of the funds may help, but it is hard to tell without seeing the NOID itself.

In order for you to file the I-526 petition, at the time of filing, you should have already invested the minimum requisite capital (i.e., $500,000). If the reason for the NOID is because you have not fully invested the requisite minimum capital, then the investment of the remaining amount may serve to respond to the NOID. In any case, you need to address the issues raised in the NOID in order to have a successful outcome.

Jinhee Wilde

Immigration Attorney

Answered onJune 27, 2018

The EB-5 investment amount is $1 million (or $500,000 if the project is in certified TEA). Having only invested $100,000 to file the I-526 and considering you have not made any efforts for a timely investment of the full amount when the petition was being adjudicated, USCIS will not approve the petition. Given the added scrutiny that USCIS puts on the eligibility and approvability of the petition when filed, I am not sure that paying the $400,000 remainder will guarantee approvability of your petition. However, if you do not make the full investment before the response for NOID is due, you will not get the approval.

We have declined to represent clients investing in regional centers that allow for partial investment. However, in this instance you should only be taking advice from your EB-5 investment attorney, rather than the project. Prior to investing another $400,000 I would recommend you consult with another experienced EB-5 investment attorney for a second opinion.

Paying the balance of your $400,000 is a legal requirement. You must make a minimum investment of $500,000, but I do not think that it would necessarily have any effect on the timing of your application, unless for whatever reason the EB-5 examiner adjudicating your petition had reason to believe that you were not going to make the minimum $500,000 investment. In any event, this is a legal requirement, not to help the project manager but because it is a requirement in order to qualify under the EB-5 program.

This case raises a few further questions. First, why was the I-526 filed with just $100,000 paid-in investment fund since 2016, without the required amount of $500,000 paid into an escrow? Second, were you represented by an EB-5 attorney or not? Finally, if the deadline for a NOID response was February, what caused the delay, until now which seemed to suggest the petition might have been denied or beyond being salvaged? Advisably, consider consulting an EB-5 attorney for possible remedies; it appears there may be a far larger problem with this project.

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